The opinion of the Court was drawn up by
Tenney J.The receipt given by the defendant’s intestate, dated April 3, 1835, for $200, introduced by the plaintiff, is evidence, that the latter had contracted with the former to pay him $500, for services in making sale of a township of land, which R. P. & R. T. Dunlap owned and had given bond to sell to the plaintiff and others on March 11, 1835. The terms of the receipt import, that such services had been rendered by Mr. Greene, and that part of the agreed price had become payable, and was paid in pursuance of the agreement. Nothing in the case indicates, that the sum paid was an advance for services not then rendered, or that it was done under the influence of any mistake or misapprehension of the real facts on the part of the plaintiff. The other evidence relied upon by the plaintiff in support of this part of the claim is entirely of a negative character; it may all be true to its utmost extent without affecting the receipt. There is the samé evidence that Mr. Greene was entitled absolutely to the $200, that there is, that he received it. The instructions of the Judge to the jury on this point were not subject to objection.
The sum of $325, named in the receipt of Oct. 29’, 1835, was agreed therein by the plaintiff to be indorsed upon Mr. Greene’s note for $500, given in June next preceding, and payable in one year. The obligation for $500, given to the plaintiff and introduced in the case, corresponds in every particular with'the note on which this sum was to be allowed, as *469described in the receipt ; and there is no evidence in the case, that the plaintiff held another note of the same description. If the sum acknowledged to have been received is not to be applied to the payment of the note introduced, it is difficult to perceive in what manner a receipt can be evidence of payment.
It was contended at the trial by the plaintiff’s counsel, that when the note of $500, was given in June, 1835, there was a fraudulent suppression of facts connected therewith, and deception practised by Greene, and in consequence the plaintiff was induced to take this note for the full amount of the sum supposed to be due, when in truth he was entitled to a much larger sum. The Judge expressed an opinion to the jury that the evidence was insufficient to establish fraud in Greene, and that parts of the evidence relied upon by the plaintiff had no tendency to make out that issue for the plaintiff, to which exceptions were taken. This case differs materially from those cited for the purpose of sustaining the exceptions. It is said in the opinion of the Court, in Aylwin v. Ulmer, 12 Mass. R. 24, “ they [the jury] must have received the impression, that by law, they could not, on that evidence, find a verdict for the plaintiff.” In Tufts v. Seabury, 11 Pick. 140, it is said, “the Judge is represented to have told the jury, that if they believed Chamberlain, they ought to find for the defendant; whereas the proper instruction would have been, that they should find for the defendant, if upon the whole evidence, they believed a credit had been given.” The verdict was set aside in Morton v. Fairbanks, 11 Pick. 368, because the Judge decided that the articles brought into Court were not shingles, and ruled, that as the point was clear on inspection, it was to be decided by the Court. The opinion says, “as the jury would have the whole case before them, this may seem to be a speculative objection, but we think in strictness the point thus decided was a question of fact.” In all the above cases, the instructions to the jury were such, that they were not at liberty to pass upon the facts, whereas in the case at bar, after expressing an opinion of the effect of the evidence, the *470Judge instructed the jury in express and unequivocal terms, that if they were satisfied upon the evidence, that such a deception had been practiced by Greene, the obligation of June 30, ] 835, might be treated as a nullity, and the plaintiff would be entitled to recover a moiety of the proceeds of the sale of the land to Rice, actually received by Greene ; that it was not obvious to the Court that there were any facts in the evidence to establish such a deception, but that the jury must judge for themselves of the facts; that fraud was not to be presumed, though it might be proved by circumstances. The jury were restrained by no rule which could be regarded as binding, but were directed to exercise their own judgment in making up their verdict.
The expression of opinion by the presiding Judge on the state of the facts of the case, is not a matter of legal exception. Phillips v. Kingfield, 19 Maine R. 375.
The permission given to the jury to return specially their finding on the question of fraud, was authorized by practice and by law. Gordon v. Wilkins, 20 Maine R, 134.
Exceptions overruled.